DIVORCE: THE PREQUEL (LEGAL SEPERATION)

By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT

The marriage didn't work out but the separation is great.
~Liz Smith

There are three ways to change the legal elements of a marriage: divorce, legal separation and nullity. Only a legal separation continues the marriage while ending most of its essential aspects. Who would want that?

The first thing you might want to know is what exactly is a legal separation? When a couple divorce there are four areas that are addressed: (i) property; (ii) a parenting plan (when there are minor children); (iii) child support; and (iv) spousal support.

The issues involved with property are the need to identify all the assets and debts, determine which are community and which are separate, ascertain the values of each, and design a plan to distribute the community estate equitably.

The issues involved with a parenting plan include who has legal custody (and if joint, how will it be exercised), and who has physical custody (where will the child(ren) live and when will each parent have their time with the child(ren).

The issues involved in support are determining the entitlement, need and ability to provide, as well as duration of support.

Each of these areas is resolved in both a divorce and a legal separation. The one difference is that in a divorce the court sets a date where the marriage ends. Not so in a legal separation. Neither party may remarry prior to the marriage’s end. So what’s the benefit?

For some, it is a religious matter where their community frowns upon divorce. For others, it is ambivalence about divorcing. It is more than a trial separation, but still holds out hope for reconciliation. More practical reasons may be for health coverage where one of the parties may lose coverage that cannot be duplicated as a single person. Or a spouse wants to qualify for derivative social security benefits (a ten year marriage), or certain benefits available for a military spouse. Since a legal separation does not have a residency requirement as does divorce, it is a faster road to settle things. A divorce can easily be obtained later.

For some the smallest distance is too great, but the greatest distance can be bridged (Nouwens).



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